Madras High Court
The Oriental Insurance Company Limited vs Minor Soundarya on 26 October, 2018
Author: N. Kirubakaran
Bench: N. Kirubakaran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2018
CORAM
THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
AND
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
C.M.A. No. 2017 of 2015
&
Cross-Objection No. 112 of 2015
The Oriental Insurance Company Limited,
No.59, Raja Street,
Gobichettipalayam. ..Appellant/1st
respondent in
Cross-Objection
Vs.
1. Minor Soundarya
rep. by guardian/next friend
K. Nagaraj ..1st respondent/
Cross-Objector
2. Rangarasan
3. S.R. Muthusami ..Respondents 2 &3
in appeal as well
as Cross-Objection
Prayer: Civil Miscellaneous Appeal as against the judgment and decree
dated 19.03.2015 passed in M.C.O.P. No. 776 of 2012 by the Motor Accidents
http://www.judis.nic.in
2
Claims Tribunal (Additional Sub Court), Tiruppur.
For Appellant/1st
respondent in
Cross-Objection : Mr.S. Manohar
For 1st respondent/
Cross Objector : Mr.M. Lokesh for
Mr.Ma.P.Thangavel
JUDGMENT
(Judgment of the Court was delivered by N. KIRUBAKARAN,J.) Gods must be insane, for having been so cruel to the innocent little girl, who was walking on the road, holding her mother's hand, when she was hit behind by a bus driven rashly and negligently by the 2 nd respondent driver causing the accident. Whether any amount of money could get back the leg, which the victim in this case, lost, when she was hardly aged 8 years? Will it relieve her of the pain and suffering, which she underwent, because of the accident or will it revive her marital prospects?. The answers to all the above queries are, unfortunately, in the negative. No amount of compensation would give her the pleasures of life, which, as a normal person, she would have experienced. She has been made to endure untold misery and hardship and also bear the social stigma as a disabled person. It is shameful to note that disabled persons are looked down upon, in our society, as if they are sinners and they are not accepted as normal persons, which gives them http://www.judis.nic.in 3 more pain and agony, rather than the fact that they are disabled.
2. The Civil Miscellaneous Appeal has been filed by the Insurance Company as against the award of Rs. 19,04,500/- passed by the Motor Accidents Claims Tribunal (Additional Sub Court), Tiruppur in M.C.O.P. No. 776 of 2012 in favour of the 1st respondent for the amputation of her right leg from thigh due to the injuries sustained by her in the accident, which occurred on 23.04.2012 when she was dashed down by a bus belonging to the 3rd respondent driven by the 2nd respondent and insured with the appellant, while walking on the road holding her mother's hand.
3. The claimant has also filed a cross-objection seeking enhancement of compensation.
4. Heard Mr.S. Manohar, learned counsel for the appellant and Mr.M. Lokesh, learned counsel representing Mr.Ma.P. Thangavel, learned counsel for the claimant.
5. The appeal has been filed by the Insurance Company questioning only the quantum of compensation. The manner of the accident and the negligence aspect are not disputed by the appellant. Therefore, the said issue http://www.judis.nic.in 4 is not gone into as it has not been questioned by the appellant.
6. The victim, in this case, was hardly 8 years old, at the time of accident on 23.04.2012 and she was studying in II standard. It is proved by the evidence of P.W.s 1 and 2 that the accident occurred because of the rash and negligent driving of the bus and it dashed against the 1st respondent/victim and the vehicle ran over her and crushed her right leg. Because of the injuries, the little girl's right leg was amputated below hip. Therefore, the disability has been fixed at 85% by the Tribunal, based on PW.2's evidence. The disability, as determined by P.W.2 Doctor, is based on medical records and after examining the girl. Ex-P5 photographs produced before this Court would also disclose that the girl lost her right leg. Therefore, this Court is not inclined to interfere with 85% disability fixed by the Tribunal considering the tender age of the girl and this Court confirms the disability fixed by the Tribunal at 85%.
7. The Tribunal, fixing the disability at 85%, awarded Rs.5 lakhs under the said head; a sum of Rs.2 lakhs towards "Loss of Marital Prospects"; Rs.1 lakh towards "Pain and Suffering and Rs.1lakh towards "Mental Agony"'; Rs.4.5 lakhs towards "Attendant Charges" throughout life; Rs.5 lakhs towards artificial leg; Rs.34,500/- towards "Medical Expenses" and Rs.20,000/- towards "Attendant Charges" during treament, in all, amounting to Rs.19,04,500/-. http://www.judis.nic.in 5
8. Though Mr.S. Manohar, learned counsel for the appellant would rely upon the judgment of the Honourable Supreme Court rendered in Mallikarjun v. Divisional Manager, National Insurance Company Limited and another reported in 2013 ACJ 2445, wherein a sum of Rs. 3,75,000/- was awarded for fracture of tibia in right leg, the said case is not a case of amputation and therefore, the principles enunciated in the said judgment would not apply to the facts of the case on hand.
9. As far as the judgments relied upon by the learned counsel for the 1st respondent/claimant, during the course of arguments, they relate to victims, who are adults and the amount to be awarded to a young girl, should be more than that of what has been awarded to the victims in those judgments, who are adults.
10. As rightly pointed out by Mr.M.Lokesh, learned counsel for the claimant, though 85% disability has been fixed, "Loss of earning power" is absolute. The said contention has to be accepted since, even as a grown up lady, in future, the victim girl would not be in a position to work hard and earn and probably, she may not get any job also. Following the judgment rendered http://www.judis.nic.in 6 in Velusamy V. United India Insurance Company Limited reported in 2005 1 CTC Pg. 38, this case requires application of multiplier method, which the Tribunal failed to do.
11. In that event, i.e, as this Court is inclined to adopt multiplier method, the determination of notional income has become necessary. In the judgment of the Honourable Apex Court in V. Mekala V. M. Malathi & another reported in 2014 (2) TN MAC 6 (SC), relied upon by Mr.M. Lokesh, learned counsel for the claimant, a 16year old 11th standard student suffered 70% disability. Though this Court fixed Rs.6000/- as notional income, the same was enhanced to Rs.15,000/- per month by the Honourable Apex Court. The said amount was determined taking into consideration, the brilliant academic performance of the student and her family background. Therefore, in the instant case, instead of determining the notional income at Rs.15,000/- per month, as per the aforesaid judgment, this Court is inclined to determine the notional income of the victim girl in this case as Rs.10,000/- per month. Since the notional income of the victim girl is fixed only at Rs.10,000/- per month, this Court has to award "Future Prospects", at 40%. Along with 40% of the income fixed towards "Future Prospects", the total income would be Rs.14,000/- (Rs.10,000 + 40% (Rs.10,000/-)). Though disability is 85%, the loss of earning capacity is absolute. Therefore, taking Rs.14,000/- as the notional http://www.judis.nic.in 7 income per month and applying multiplier 18 as per the age of the injured, namely, 8 years, "Loss of Income due to disability" is derived as hereunder:
Loss of Income due to disability :: Rs.14,000 x 12 x 18 :: Rs.30,24,000/-
12. The Honourable Apex Court in Ankur Kapur V. Oriental Insurance Company Limited (2018 1 SCC 136) awarded a sum of Rs.3 lakhs each towards "Pain, Agony and Trauma", "Loss of Amenities" and "Loss of Expectation of Life" for a 22 year old man. When that is the position, in respect of a 22 year old adult, the pain and suffering undergone by the victim girl in the case on hand during surgery to amputate the leg and post-operative trauma and suffering undergone by her would have been even more. In M.Premkumar V. M. Palaniappan and another reported in 2017 (1) TN MAC 427, this Court has dealt with a case of amputation upto thigh level and a reference to Paragraph Nos. 4.3 to 4.9 of the said judgment would give an insight as to what would be the extent of "pain" in cases of amputation. The relevant paragraphs reads as follows:
"4.3 Therefore, it is necessary to consider what is the "Pain" in case of persons who suffer amputation.
4.4 Amputation of a body part, whether as a result of trauma or surgical intervention, is almost always associated with awareness of, and http://www.judis.nic.in 8 sensations referred to, the missing body part. These sensations were first noted by Ambroise Pare, a French Military Surgeon in the middle of the 16th century. Mitchel first used the term 'Phantom' in 1871 from his observations and Medical Studies of the American Civil War.
4.5 Three phenoma occur after amputation – (i) Phantom Sensation,(ii) Stump Pain and (iii) Phantom Pain.
Phantom Sensation 4.6 The term 'Phantom Sensation' describes any sensation that is experienced in the absent part excluding pain. Its incidence is very high, with virtually all amputees describing phantom limb sensations. A variety of sensations can be felt, including the perception that the missing limb is still present and paresthesis occurring in the amputated limb. The phenomenon of telescoping occurs when the distal part of the missing limb is felt to recede back towards the stump.
4.7 Stump Pain that occurs immediately after amputation is acute nociceptive pain and usually resolves after a few weeks as the wound heals. Infection or wound dehiscence may prolong postoperative pain in some cases.
4.8 Stump Pain can persist for much longer than the initial period of wound healing, lasting months or years.
4.9 Further, Reports (Primary Care to be given to the Amputees) in the Journal of Clinical Psychiatry official Journal of the Association Medicine and Psychiatry, answers the question – What Does Rehabilitation After Amputation Entail, and What Can be Done to Enhance Resilience in Patients?
http://www.judis.nic.in 9 "Treatment after amputation involves planning a rehabilitation regiment (even prior to the surgery), managing the immediate postoperative period, planning for an appropriate level of care after discharge, and educating the patient and family to prevent complications.
A rehabilitation regimen includes upper extremity strengthening for lower extremity amputations, tranfger training, crutch walking or training in the use of a walker, and evaluation for equipment that may be needed at home (including a wheelchair and a bench for bathing safely). Prosthetic training is also given if the patient is eligible for a porsthetic and has the energy to learn to use it. Such a regimen needs to be tailored to the patient's motivation and capacity; the more actiely engaged the patient can become even prior to the surgery, the better the post-amputation prognosis he or she may have.
Discharge planning includes a home safety evaluation by occupational therapy and discussion with the patient and his or her family about what the patient's living situation can accommodate. It is important to include a discussion of the timeline of expected discharge in this process so that the patient is mentally prepred to leave the hospital after surgery and has activities or social contacts planned.
Management during the immediate postoperative period inlcudes pain management, psychological support, proper positioning of the residual limb (including elevation to prevent limb edema), evaluation of the limb dressing and placement of a cast, and inspection of sutures. The discomfort that can be associated with wearing a ast should be explained to the patient as necessary in the prevention of contractures, which can ultimately compromise mobility.
Education of patients and their familities is aimed at the care and prevention of complications; it includes attention to limb care and inspection, limb wrapping, prosthetic care, stump care, foot care, and emergency care and monitoring for early signs of infection. Patient inspection of the limb is particularly important if the patient has a prosthesis, as this should not be done if there is any possibility of infection. Limb wrapping often needs to be done several times a day. The prosthetic will require daily cleaning and inspection to prevent infection and to allow for maximal use. Stump socks must be scrupulously maintained to avoid risk to the site. Finally, preventive foot care (often with involvement of a podiatrist), as well as learning to recognize indications for emergency care, are important aspects for the prevention of a http://www.judis.nic.in 10 second amputation, for which lower extremity unilateral amputees are at high risk.
Important ways in which the resilience of amputees can be enhanced include building up social supports and caregiver resilience; individual psychotherapy, psycho pharmacologic treatment, and reinforcement of the positive coping styles; and treatment of preexisting psychiatric disorders (which carry a poor prognosis for post amputation survival and function)."
13.1 International Neuro Modulation Society has given the details regarding post amputation pain and Phantom Limb Pain. Pain following an amputation may develop as either Residual Limb Pain, Phantom Limb Pain or Phantom Limb Sensation. According to the Society, (i) Residual Limb Pain means pain or discomfort experienced in or at the stump of the amputated limb; (ii) Phantom Limb Pain means pain or discomfort felt to be coming from the missing limb or body part and (iii) Phantom Limb Sensation means sensation or perception of movement coming from the missing limb or body. Another Research Article by Robin Bekrater and Bodmann, Michael Schredl and Herta Flor called "Post Amputation Pain is associated with the Recall of an Impaired Body Representation in Dreams - Results from a nation wide survey of Limb Amputees" states that the experience of post amputation pain such as Phantom Limb Pain (PLP) and Residual Limb Pain (RLP) is a common consequence of limb amputation and its presence has negative effects on a person's well-being.
http://www.judis.nic.in 11 13.2 The treatment for the above pains could be challenging and should entail multi model and multi disciplinary approach that includes oral pain medication combined with rehabilitation therapy (i.e, bio feedback, mirror therapy, etc), the society states. Therefore, it is clear that a person, whose limb has been amputated is bound to suffer the pain lifelong in various forms like Residual Limb Pain, Phantom Limb Pain and Phantom Limb Sensation. Scientifically, it is found that it is not only loss of left leg of claimant, but also continuous and perennial sufferance of pain in various forms for the rest of her life and she has to be under medication for pain management. For the above reasons only, this Court awards a sum of Rs. 3Lakhs towards "Pain, Agony and Trauma" to the claimant.
14. It is very difficult for a girl or boy to get suitable alliance when the said person is disabled, especially, when one of her legs have been amputated. Therefore, "Marital Prospects" of the victim in the present case would be bleak or less. Hence, this Court grants a sum of Rs.3 lakhs towards "Loss of Amenities" including "Loss of Marital Prospects". Similarly, towards "Loss of Expectation of Life", Rs. 3 lakhs is awarded.
15. The claimant has to depend upon somebdoy throughout her life and moreover, she happens to be a girl. In the judgment of the Honourable http://www.judis.nic.in 12 Apex Court in Kavita V. Deepak and Others reported in 2012 (2) TN MAC 362 (SC), a sum of Rs.6 lakhs was awarded towards "Attendant Charges" @ Rs.2000/- per month for 25 years. In that case, the injured victim was a 30 year old woman, who sustained 90% disability whereas in this case, disability sustained is 85% and the age of the victim is 8 years. Even if Rs.2000/- is fixed per month towards "Attendant Charges", assuming that the longevity or life span of the victim girl is 70 years, the amount to be awarded towards "Attendant Charges" would be more. However, following the judgment of the Honourable Apex Court in Kavita's case, stated above, a sum of Rs.6 lakhs is awarded towards "Attendant Charges".
16. Since the claimant lost her leg, she has to be fixed with an artificial leg for which a sum of Rs.5 lakhs was awarded by the Tribunal and the same is confirmed. The sum of Rs.34,500/- awarded towards "Medical Expenses" and Rs.20,000/- awarded towards "Attendant Charges" during treatment period is also confirmed. No amount was awarded towards "Transportation Charges" and "Extra Nourishment" and therefore, a sum of Rs.1 lakh is awarded towards "Extra Nourishment" and Rs.50,000/- is awarded towards "Transportation Charges".
Totally, the compensation payable to the 1st respondent/claimant is, http://www.judis.nic.in 13 Loss of Income due to Disability :: Rs.30,24,000/-
Pain, Agony and Trauma :: Rs. 3,00,000/-
Loss of Expectation of Life :: Rs. 3,00,000/-
Loss of Marital Prospects :: Rs. 3,00,000/-
Attendant charges for life :: Rs. 6,00,000/-
Attendant charges during
treatment :: Rs. 20,000/-
Towards Artificial Leg :: Rs. 5,00,000/-
Medical Expenses :: Rs. 34,500/-
Transportation Charges :: Rs. 50,000/-
Extra Nourishment :: Rs. 1,00,000/-
Total :: Rs.52,28,500/-
Rounded off to :: Rs.52,25,000/-
Thus, the Compensation of Rs.19,04,500/- awarded by the Tribunal is enhanced to Rs.52,25,000/-
17. In the result, the Civil Miscellaneous Appeal preferred by the http://www.judis.nic.in 14 Insurance Company is dismissed and the Cross-Objection preferred by the Claimant is partly allowed. The rate of interest awarded by the Tribunal @ 7.5% per annum remains unaltered. The claimant shall pay additional court- fee, if any. No costs.
18. The appellant Insurance Company is directed to deposit the entire award amount, as per the modified award passed by this Court, with interest and costs, after deducting the amount already deposited, if any, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the Tribunal is directed to transfer 50% of the award amount, as money is needed for treatment and other miscellaneous expenses, to the bank account of the claimant's father, as the claimant is a minor, through RTGS, after getting the bank account details, within a period of one week thereafter. The balance 50% of the award amount shall be deposited in the account of the minor to be opened in her name in any one of the Nationalised Banks in interest bearing Fixed Deposit at least for a period of five years and thereafter, it is open to the claimant to move the Tribunal for withdrawal of the amount.
19. Life on the road is not safe in India due to accidents caused by rash, negligent, disobedient, irresponsible, over-speeding, drunk drivers and http://www.judis.nic.in 15 riders. More lives meet their ends on Indian Roads than due to disease or natural calamities. The Drivers/Riders should realise that their fault/negligence in driving causes loss of life/lives or injuries to innocent third parties making them to suffer throughout their lives. The story of the victim child should teach the Indian Drivers to drive more carefully and responsibly.
(N.K.K.J.) (R.P.A.J.)
26.10.2018
nv
To
The MACT (Addl. Sub Court,), Tiruppur.
http://www.judis.nic.in
16
N. KIRUBAKARAN,J.
AND
R. PONGIAPPAN,J.
nv
C.M.A. No. 2017 of 2015
&
Cross-Objection No.112 of 2015
Dated : 26.10.2018
http://www.judis.nic.in